Wilson v. McGillivray

108 P. 620, 58 Wash. 291, 1910 Wash. LEXIS 931

• Court: Washington Supreme Court
• Decided: May 5, 1910
• Docket: Nos. 8725, 8679
• Status: Published

Opinion

Mount, J.

This appeal is from an order vacating a judgment and quashing the service of summons. It appears that the appellant brought an action against the respondent and obtained service by leaving a copy of the summons with an employee of an apartment house in Seattle where the respondent once occupied an apartment. Thereafter, on November 11, 1909, the complaint and return of service were filed, and an order of default was entered against the respondent. On the same day a judgment was entered in favor of the plaintiff for $20,000. Thereafter, on November 29, 1909, the respondent appeared specially and moved the court to quash the service of the summons and to vacate the judgment, upon the ground that no service of the summons had been made. This motion was granted and the court, on December 15, 1909, made an order vacating the judgment and quashing the service of the summons. The action was not dismissed. The plaintiff appeals from that order, and the respondent moves the court to dismiss the appeal.

This motion must be sustained. In Tatum v. Geist, 40 Wash. 575, 82 Pac. 902, after citing several cases we had theretofore decided upon this point, we said:

“The rule deducible from these decisions is this: If an order vacating a judgment, or quashing a summons or the service thereof, is or may be followed by further proceedings in the cause, and the entry of a final judgment therein, such order may be reviewed .on appeal from the final judgment, and is not itself appealable. If, on the contrary, the order vacating the judgment, or quashing the summons or the service thereof, in effect determines the action or proceeding and prevents a final judgment therein, the order itself is a final one, and is therefore appealable.”

This case is one which may be followed by further proceedings, for the action was not dismissed but is still pending.

It is suggested by counsel for appellant that the record shows that the respondent is without the state, and that personal service cannot be made. But the record does not show that substituted service by attachment may not be had. Where the action is not dismissed and it does not appear upon the face of the record that the order in effect determines the action and prevents a final judgment therein, we cannot look outside the record for facts which might show that the action is finally determined by the quashing of the summons. Finality of the order must appear upon the face of the record as it did in the cases cited in Tatum v. Geist, before the order may be held final and, therefore, appealable.

Application is also made for a writ of review in case the appeal is dismissed. But because the order is not a filial one and may be reviewed upon final judgment, this application must also be denied.

Rudkin, C. J., Ckow, Dunbar, and Chadwick, JJ., concur.